IN THE TENTH COURT OF APPEALS
No. 10-15-00167-CR No. 10-15-00173-CR
RAYMOND ROSS MORMINO, II, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court Nos. 2012-396-C1 and 2012-394-C1
MEMORANDUM OPINION
Upon his open plea of guilty, Raymond Mormino, II, was convicted in Cause No.
10-15-00167-CR of the offense of failure to stop and render aid. The trial court assessed
punishment at ten years confinement. Upon his open plea of guilty, Raymond Mormino,
II, was convicted in Cause No. 10-15-00173-CR of the offense of aggravated assault with
a deadly weapon, a motor vehicle. The trial court assessed punishment at fifteen years confinement. The sentences are to run concurrently. We affirm Cause No. 10-15-00167-
CR. We affirm as modified Cause No. 10-15-00173-CR.
Background Facts
On January 23, 2012, McLennan County Sheriff’s Deputy Tyrone Caldwell was off
duty and exercising in a local park. Deputy Caldwell was hit by a vehicle driven by
Appellant and suffered severe injuries. Appellant fled the scene, but police received
information linking Appellant to the accident. Police went to Appellant’s residence and
located a vehicle containing pieces of human flesh which was confirmed by DNA
evidence to be from Deputy Caldwell. The vehicle also contained damage consistent with
the evidence found at the scene of the accident.
Criminal Filing Fees
In the sole issue on appeal in Cause No. 10-15-00167-CR, and in the third issue on
appeal in Cause No. 10-15-00173-CR, Appellant argues that there is no statutory basis for
the imposition of a “CRIMINAL FILING FEE” in the amount of $224.00. The clerk’s
record contains a bill of costs indicating that Appellant is required to pay $369.00 in court
costs. Among the fees listed in the bill of costs is a “criminal filing fee” in the amount of
$224.00. The bill of costs does not provide specific detail for the criminal filing fee. On
March 17, 2016, the trial court clerk filed a supplemental clerk’s record that detailed the
specific charges related to the $224.00 filing fee.
A bill of costs is a relevant item that if omitted from the record, can be prepared
and added to the record via a supplemental clerk's record. Johnson v. State, 423 S.W.3d
385, 392 (Tex. Crim. App. 2014). Therefore, matters pertaining to the imposition of court
Mormino v. State Page 2 costs need not be brought to the attention of the trial court, including a bill of costs
prepared after a criminal trial. Id at 394. Once the record has been properly
supplemented with a bill of costs, the court of appeals errs when it fails to consider that
bill of costs when resolving Appellant's court-costs claim. See Johnson v. State, 423 S.W.3d
at 394.
The fees itemized in the supplemental clerk’s record bill of costs are all authorized
by statute:
Clerk’s Fee - $40.00 TEX. CODE CRIM. PROC. art. 102.005 (a) (West 2006) Records Management Fee - $25.00 TEX. CODE CRIM. PROC. art. 102.005 (f) (West 2006) Courthouse Security Fee - $5.00 TEX. CODE CRIM. PROC. art. 102.017(a) (West Supp. 2015) Consolidated Court Costs - $133.00 TEX. LOC. GOV’T CODE ANN. § 133.102(a) (West Supp. 2015) Judicial Support Fee - $6.00 TEX. LOC. GOV’T CODE ANN. § 133.105 (a) (West 2008) Jury Reimbursement Fee - $4.00 TEX. CODE CRIM. PROC. art. 102.0045 (a) (West Supp. 2015) Indigent Defense Representation Fee - $2.00 TEX. LOC. GOV’T CODE ANN. § 133.107(West Supp. 2015) District Court Technology Fee - $4.00 TEX. CODE CRIM. PROC. art. 102.0169 (West Supp. 2015) Electronic Filing Fee - $5.00 – TEX. GOV’T CODE ANN. § 51.851 (West Supp. 2015)
The supplemental clerk’s record contains an itemized bill of costs that provides a
statutory basis for the $224.00 in costs Appellant complains of on appeal. We overrule
the sole issue in Cause No. 10-15-00167-CR and the third issue in Cause No. 10-15-00173-
CR.
Mormino v. State Page 3 Admonishment on Range of Punishment
In the first issue in Cause No. 10-15-00173-CR, Appellant complains that the trial
court erred in failing to admonish him on the correct range of punishment. The record
shows that prior to accepting Appellant’s plea of guilty, the trial court incorrectly
admonished Appellant that the range of punishment for aggravated assault was “not less
than two nor more than ten years”. The actual range of punishment for aggravated
assault, a second degree felony, is not less than 2 years nor more than twenty years. TEX.
PENAL CODE ANN. § 22.02; 12.33 (West 2011). The trial court ordered a presentence
investigation before assessing punishment. At the punishment hearing, the trial court
stated:
I had indicated that on the aggravated assault case that I was going to do 12 years in the penitentiary and 10 years on the failure to stop and render aid. The aggravated assault case is a 2 to 20. The failure to stop and render aid was 2 to 10. After hearing the testimony today and seeing all the physical evidence, it gives you a different perspective than what I had originally. So I’m going to assess your sentence on the aggravated assault case at 15 years in the penitentiary, and I’m still going to make it 10 years on the failure to stop and render aid.
Article 26.13(a)(1) of the Code of Criminal Procedure states that, "[p]rior to
accepting a plea of guilty or plea of nolo contendere, the court shall admonish the
defendant of ... the range of punishment attached to the offense[.]" TEX. CODE CRIM. PROC.
ANN. art. 26.13 (a) (1) (West Supp. 2015). In admonishing the defendant, “substantial
compliance by the court is sufficient, unless the defendant affirmatively shows that he
was not aware of the consequences of his plea and that he was misled or harmed by the
admonishment of the court. TEX. CODE CRIM. PROC. ANN. art. 26.13 (c) (West Supp. 2015).
Mormino v. State Page 4 Appellant argues, and the State agrees, that the trial court’s misstatement of the
applicable range of punishment did not substantially comply with Article 26.13 (a) (1).
Because the failure to properly admonish on the applicable punishment range is
predicated on a statutory violation, the standard for determining harm is that used for
claims of non-constitutional error in TEX.R.APP.P. 44.2(b). Davison v. State, 405 S.W.3d
682, 688 (Tex. Crim. App. 2013). In determining harm under this provision, we must look
to the record as a whole to determine whether Appellant was “aware of the particular
information upon which he should have been admonished … prior to the time that the
trial court accepted his plea.” Id.
Appellant signed a “Waiver of Jury Trial, Stipulation of Evidence, and Judicial
Confession Felony Plea of Guilty to Open Court” in which he acknowledges that he
understands the minimum and maximum punishment. The waiver signed by Appellant
states that aggravated assault is a second degree felony. Appellant’s trial counsel further
signed the waiver and stated that he consulted with Appellant concerning the charge of
aggravated assault, a second degree felony, and the consequences of the plea. In a
competency evaluation in which Appellant was found competent to stand trial, the
evaluator noted that Appellant “understood his charge and recognized the seriousness
of the charge stating they were felonies punishable by “2-20 years and 2-10 years
maximum.’”
At the punishment hearing, the trial court stated the correct range of punishment.
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IN THE TENTH COURT OF APPEALS
No. 10-15-00167-CR No. 10-15-00173-CR
RAYMOND ROSS MORMINO, II, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court Nos. 2012-396-C1 and 2012-394-C1
MEMORANDUM OPINION
Upon his open plea of guilty, Raymond Mormino, II, was convicted in Cause No.
10-15-00167-CR of the offense of failure to stop and render aid. The trial court assessed
punishment at ten years confinement. Upon his open plea of guilty, Raymond Mormino,
II, was convicted in Cause No. 10-15-00173-CR of the offense of aggravated assault with
a deadly weapon, a motor vehicle. The trial court assessed punishment at fifteen years confinement. The sentences are to run concurrently. We affirm Cause No. 10-15-00167-
CR. We affirm as modified Cause No. 10-15-00173-CR.
Background Facts
On January 23, 2012, McLennan County Sheriff’s Deputy Tyrone Caldwell was off
duty and exercising in a local park. Deputy Caldwell was hit by a vehicle driven by
Appellant and suffered severe injuries. Appellant fled the scene, but police received
information linking Appellant to the accident. Police went to Appellant’s residence and
located a vehicle containing pieces of human flesh which was confirmed by DNA
evidence to be from Deputy Caldwell. The vehicle also contained damage consistent with
the evidence found at the scene of the accident.
Criminal Filing Fees
In the sole issue on appeal in Cause No. 10-15-00167-CR, and in the third issue on
appeal in Cause No. 10-15-00173-CR, Appellant argues that there is no statutory basis for
the imposition of a “CRIMINAL FILING FEE” in the amount of $224.00. The clerk’s
record contains a bill of costs indicating that Appellant is required to pay $369.00 in court
costs. Among the fees listed in the bill of costs is a “criminal filing fee” in the amount of
$224.00. The bill of costs does not provide specific detail for the criminal filing fee. On
March 17, 2016, the trial court clerk filed a supplemental clerk’s record that detailed the
specific charges related to the $224.00 filing fee.
A bill of costs is a relevant item that if omitted from the record, can be prepared
and added to the record via a supplemental clerk's record. Johnson v. State, 423 S.W.3d
385, 392 (Tex. Crim. App. 2014). Therefore, matters pertaining to the imposition of court
Mormino v. State Page 2 costs need not be brought to the attention of the trial court, including a bill of costs
prepared after a criminal trial. Id at 394. Once the record has been properly
supplemented with a bill of costs, the court of appeals errs when it fails to consider that
bill of costs when resolving Appellant's court-costs claim. See Johnson v. State, 423 S.W.3d
at 394.
The fees itemized in the supplemental clerk’s record bill of costs are all authorized
by statute:
Clerk’s Fee - $40.00 TEX. CODE CRIM. PROC. art. 102.005 (a) (West 2006) Records Management Fee - $25.00 TEX. CODE CRIM. PROC. art. 102.005 (f) (West 2006) Courthouse Security Fee - $5.00 TEX. CODE CRIM. PROC. art. 102.017(a) (West Supp. 2015) Consolidated Court Costs - $133.00 TEX. LOC. GOV’T CODE ANN. § 133.102(a) (West Supp. 2015) Judicial Support Fee - $6.00 TEX. LOC. GOV’T CODE ANN. § 133.105 (a) (West 2008) Jury Reimbursement Fee - $4.00 TEX. CODE CRIM. PROC. art. 102.0045 (a) (West Supp. 2015) Indigent Defense Representation Fee - $2.00 TEX. LOC. GOV’T CODE ANN. § 133.107(West Supp. 2015) District Court Technology Fee - $4.00 TEX. CODE CRIM. PROC. art. 102.0169 (West Supp. 2015) Electronic Filing Fee - $5.00 – TEX. GOV’T CODE ANN. § 51.851 (West Supp. 2015)
The supplemental clerk’s record contains an itemized bill of costs that provides a
statutory basis for the $224.00 in costs Appellant complains of on appeal. We overrule
the sole issue in Cause No. 10-15-00167-CR and the third issue in Cause No. 10-15-00173-
CR.
Mormino v. State Page 3 Admonishment on Range of Punishment
In the first issue in Cause No. 10-15-00173-CR, Appellant complains that the trial
court erred in failing to admonish him on the correct range of punishment. The record
shows that prior to accepting Appellant’s plea of guilty, the trial court incorrectly
admonished Appellant that the range of punishment for aggravated assault was “not less
than two nor more than ten years”. The actual range of punishment for aggravated
assault, a second degree felony, is not less than 2 years nor more than twenty years. TEX.
PENAL CODE ANN. § 22.02; 12.33 (West 2011). The trial court ordered a presentence
investigation before assessing punishment. At the punishment hearing, the trial court
stated:
I had indicated that on the aggravated assault case that I was going to do 12 years in the penitentiary and 10 years on the failure to stop and render aid. The aggravated assault case is a 2 to 20. The failure to stop and render aid was 2 to 10. After hearing the testimony today and seeing all the physical evidence, it gives you a different perspective than what I had originally. So I’m going to assess your sentence on the aggravated assault case at 15 years in the penitentiary, and I’m still going to make it 10 years on the failure to stop and render aid.
Article 26.13(a)(1) of the Code of Criminal Procedure states that, "[p]rior to
accepting a plea of guilty or plea of nolo contendere, the court shall admonish the
defendant of ... the range of punishment attached to the offense[.]" TEX. CODE CRIM. PROC.
ANN. art. 26.13 (a) (1) (West Supp. 2015). In admonishing the defendant, “substantial
compliance by the court is sufficient, unless the defendant affirmatively shows that he
was not aware of the consequences of his plea and that he was misled or harmed by the
admonishment of the court. TEX. CODE CRIM. PROC. ANN. art. 26.13 (c) (West Supp. 2015).
Mormino v. State Page 4 Appellant argues, and the State agrees, that the trial court’s misstatement of the
applicable range of punishment did not substantially comply with Article 26.13 (a) (1).
Because the failure to properly admonish on the applicable punishment range is
predicated on a statutory violation, the standard for determining harm is that used for
claims of non-constitutional error in TEX.R.APP.P. 44.2(b). Davison v. State, 405 S.W.3d
682, 688 (Tex. Crim. App. 2013). In determining harm under this provision, we must look
to the record as a whole to determine whether Appellant was “aware of the particular
information upon which he should have been admonished … prior to the time that the
trial court accepted his plea.” Id.
Appellant signed a “Waiver of Jury Trial, Stipulation of Evidence, and Judicial
Confession Felony Plea of Guilty to Open Court” in which he acknowledges that he
understands the minimum and maximum punishment. The waiver signed by Appellant
states that aggravated assault is a second degree felony. Appellant’s trial counsel further
signed the waiver and stated that he consulted with Appellant concerning the charge of
aggravated assault, a second degree felony, and the consequences of the plea. In a
competency evaluation in which Appellant was found competent to stand trial, the
evaluator noted that Appellant “understood his charge and recognized the seriousness
of the charge stating they were felonies punishable by “2-20 years and 2-10 years
maximum.’”
At the punishment hearing, the trial court stated the correct range of punishment.
Neither Appellant nor his counsel had any reaction or showed any surprise to the correct
range of punishment. The trial court further indicated that he had planned to assess
Mormino v. State Page 5 punishment at 12 years, but decided on 15 after hearing the evidence. Again neither
Appellant nor his counsel had any reaction to the trial court’s statement. The Appellant's
failure to exhibit alarm or surprise at the punishment phase is a circumstance relevant in
determining harm. Davison v. State, 405 S.W.3d at 688-689. For claims of non-
constitutional error, "a conviction should not be overturned unless, after examining the
record as a whole, a court concludes that an error may have had 'substantial influence'
on the outcome of the proceeding." Burnett v. State, 88 S.W.3d 633, 637-8 (Tex. Crim. App.
2002). If the reviewing court has "a grave doubt" that the result was free from the
substantial influence of the error, then it must treat the error as if it did. Id. There is
evidence in the record to show that Appellant was aware of the consequences of his plea,
including the range of punishment. After reviewing the entire record, we cannot say that
the trial court’s misstatement on the applicable range of punishment misled or harmed
appellant. TEX.R.APP.P. 44.2(b); Davison v. State, 405 S.W.3d at 689; Burnett v. State, 88
S.W.3d at 641. We find that Appellant’s substantial rights were not affected by the trial
court's faulty admonishment. TEX.R.APP.P. 44.2(b); Davison v. State, 405 S.W.3d at 689.
We overrule the first issue in Cause No. 10-15-00173-CR.
Assessment of Fees
In the second issue in Cause No. 10-15-00173-CR, Appellant argues that the
evidence is insufficient to support the trial court’s decision to order Appellant, who is
indigent, to pay court costs for court-appointed attorney’s fees. The State concedes that
there is insufficient evidence to support the assessment of court-appointed attorney’s
fees. We sustain the second issue in Cause No. 10-15-00173-CR.
Mormino v. State Page 6 Conclusion
We affirm the trial court’s judgment in Cause No. 10-15-00167-CR. In Cause No.
10-15-00173-CR, we modify the trial court’s judgment to delete the assessment of
attorney’s fees. As modified, the judgment in Cause No. 10-15-00173-CR is affirmed.
AL SCOGGINS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed; Affirmed as modified Opinion delivered and filed May 12, 2016 Do not publish [CR25]
Mormino v. State Page 7